Free speech in Madison: was that a "no-Ovadal-on-overpasses" rule?

A Seventh Circuit panel, consisting of Judges Easterbrook, Kanne, and Sykes, reversed Judge Shabaz’s decision granting summary judgment to the City of Madison in a case brought by a Christian minister who (along with some fellow protesters) stood on the overpass over the busiest highway in Madison holding banners that read “Homosexuality is sin” and “Christ can set you free.” (Link via How Appealing.) The police cited the disorderly conduct statute in banning them from the overpass, and the minister, Ralph Ovadal, sued, saying his First Amendment rights had been violated.

Disorderly conduct under the Wisconsin statute is engaging in “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance . . . .” The police saw Ovadal’s peaceful protest as “otherwise disorderly conduct.” Is it not “disorderly” to protest with conspicuous signs from a bridge over a busy highway? But how do we know the police didn’t pick on Ovadal’s group because of their message? Would a pro-gay group have been banned? We don’t know, because no other groups have protested like this. If the city had had a neutral law banning all protests on the overpasses, it would have been different. In fact, the city didn’t even commit to an intent to invoke the “disorderly conduct” statute whenever anyone protested on a Beltline overpass. It wants to allow the police to make ad hoc decisions based on the reactions of the drivers. And in this case, Madison drivers were getting really steamed, slamming on their brakes, making hand gestures, and even coming up out of the sunroof to yell at Ovadal. That is, Ovadal's disorderliness was measured by how angry it made the drivers.

Judge Kanne wrote:

“Listeners’ reaction to speech is not a content-neutral basis for regulation.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). “Speech cannot . . . be punished or banned, simply because it might offend” those who hear it. Id. at 134-35. It cannot be denied that drivers who yelled, gestured, and slammed on their brakes when they saw Ovadal’s signs created a safety hazard on the Beltline. However, it is the reckless drivers, not Ovadal, who should have been dealt with by the police, perhaps in conjunction with an appropriate time, place, and manner restriction on Ovadal. The police must preserve order when unpopular speech disrupts it; “[d]oes it follow that the police may silence the rabble-rousing speaker? Not at all. The police must permit the speech and control the crowd; there is no heckler’s veto.” Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993).

Thus, the defendants were not entitled to a summary judgment; the case must go on, remanded to Judge Shabaz to determine “whether the city’s rule that no protests may take place on overpasses when those protests cause a traffic hazard is capable of content-neutral application, or whether the city has imposed a content-based and impermissible ‘no-Ovadal-on-overpasses’ rule.”

UPDATE: One of my colleagues writes:

I just drove west on University from downtown, and there are protesters on the footpath overpass over University between the Humanities building and Vilas right now. They're protesting the Olympics being in Beijing in 2008. I know it's not the Beltline, but still ...

Ah, this brings back an old memory about the police confronting my son Chris about a sign interfering with traffic. I call him to get a completely accurate version of the story: It was Election Day, 2000. Chris, along with other sixteen-year-olds, was holding up a "Gore" sign on the Beltline overpass. A man with a Bush sticker on his car stopped to yell at them and then called the police. The police then showed up as a result of the driver's complaint and told the kids they couldn't hold their signs like that, and when Chris asked why, he was told sharply that if he kept asking questions he'd be taken down to the station. The kids weren't forced to leave, however. They were allowed to stay as long as they changed the angle at which they were pointing the signs so that they didn't aim down at cars going under the overpass but faced more straight ahead.

MORE: I'm guessing one or more of the students pointed or shook the Gore sign at the Bush-sticker guy in a taunting way. Chris said this didn't happen, but it was a group of kids and he may not have seen it. This would seem to explain the strange business of dictating the angle of holding the sign.